State Amendment Scare Tactics

In a TV ad to Michigan voters, a group goes too far when it claims a proposed state constitutional amendment to protect union rights “would eliminate safety rules for school bus drivers.”

The ad also fails to tell the whole story when it claims the amendment “could prohibit schools from removing employees with criminal records.”

The 3-page ballot measure contains a provision stating that no existing or future state law “shall abridge, impair or limit” a public employee union’s rights to negotiate wages, hours and “other terms and conditions of employment.”

Opponents argue that the “conditions of employment” language could be interpreted to allow unions to negotiate contracts that do away with safety requirement or allow convicted criminals to work in schools.

Would unions do that, and would the courts rule in their favor if they did? Two law professors we contacted found that hard to believe. Both said they support the measure, but have not been active in campaigning for it.

The group’s treasurer is Jared Rodriguez, a former senior vice president of the Grand Rapids Chamber of Commerce and the current president of the pro-business West Michigan Policy Forum.

Recent contributors include Ethelmae Humphreys, the chairman of the board of a Missouri-based manufacturing business and board member of the libertarian Cato Institute. She gave the group $250,000.

Pro-union groups successfully placed the proposed amendment on the ballot after Michigan passed several laws that restrict public employee benefits and bargaining rights (see page 7). For instance, one law limits public employers from paying more than 80 percent of the premiums for employee health care costs

The Nightmare

The group bases the ad’s claims on the Michigan Attorney General’s interpretation of the proposal.

AG Bill Schuette, a Republican who opposes the amendment, sent a memo to Michigan’s Republican governor in July. The letter stated that the proposal appears to repeal 170 state laws because they regulate collective bargaining rights and terms of employment for public sector workers.

In fine print, the ad cites three of the laws mentioned in Schuette’s letter. They are:

We contacted Nick DeLeeuw, the group’s spokesman, who told us the proposal’s own ballot language states the amendment “would” override state laws that conflict with collective bargaining agreements.

Therefore, DeLeeuw said, a state law requiring training for school bus drivers would disappear unless a current union contract contains a similar requirement.

DeLeew added that even the state’s teachers union has said the amendment “would” undo state laws. He pointed us to an internal memo from the Michigan Education Association, which similarly claims that the amendment would “immediately” repeal certain regulations. For instance, the letter said the proposal would undo the provision limiting public employers from paying more than 80 percent of the premiums for employee health care costs.

Both interpretations go too far.

The Process

The Michigan Legislature’s nonpartisan House Fiscal Agency outlined the process through which the proposed amendment could impact state laws. And there are no certainties for what would happen.

The agency said changes would depend on “two unknowns”: What the courts decide and what the unions and school boards negotiate.

The agency cited as an example the law limiting public employer contributions to health care premiums.

According to the House Fiscal Agency, the proposed amendment would affect the law if:

Someone challenges it in court.

Michigan’s courts determine the law is unconstitutional under the proposed amendment.

A union and school board agree to increase the district’s health care contributions beyond the 80 percent limit.

The report stated: “[I]ncreased costs would only occur if labor agreements were subsequently reached between public employers and public employee unions that would not have been possible under the limitations of the law.”

Doubts

We asked two law professors for their opinion on how the proposal could impact the laws mentioned in the ad.

Justin Long, a law professor at Wayne State University who specializes in state constitutionalism, said the ad’s claims are implausible.

Long told us he had agreed to allow his name to be included on a list of supporters of the measure. “Otherwise, I have not spoken publicly on the issue. My analysis as a state constitutionalist would be the same either way,” he wrote to us in an email.

Long wrote that someone could conceivably challenge the requirements for school bus driver training and criminal background checks. For example, a school board could refuse to bargain over those issues, prompting a union to take the dispute to court.

But Long questioned why the courts would interpret the amendment in a way that “eviscerated school safety.”

“Perfectly conventional methods of constitutional interpretation would permit the courts to avoid the parade of horribles posed in the ad,” he wrote. “For example, the text of the amendment does not refer to safety requirements, and there is no reason to think the drafters intended to eliminate safety requirements.”

But what if the courts decide these laws are subject to collective bargaining?

“I find it implausible that a school district would accept negotiating terms that left dangerous drivers in school buses or dangerous offenders in schools,” Long wrote. “[N]or would a union be likely to pursue such an objective in collective bargaining.”

Robert McCormick, a labor law professor at Michigan State University, said school boards and teachers unions could be required — at most — to negotiate on those laws. McCormick also told us that he favors the measure.

“But it doesn’t give unions the right to hold these matters up until somehow management agrees,” McCormick said. “It doesn’t give organized labor veto power over any collective bargaining proposal.”

McCormick said it’s possible that the union and school board could negotiate a contract that circumvents these laws.

“But it’s such a stretch,” he said. “I struggle with it intellectually to figure out how it would play out that way.”

— Ben Finley

Footnote: We learned of Protecting Michigan Taxpayer’s ad from a reader who also holds a leadership position in a firefighters union in Michigan. We welcome tips and leads from anyone. But the reporting is our own. We still make our own judgments and apply the same standards of fairness and accuracy. We encourage readers to submit claims to the Spin Detectors website, through which we ask our readers to help us monitor political claims and campaigns across the country.